Solomon v. Reese, 34 Cal. 28

Solomon v. Reese

34 Cal. 28 | Cal. | 1867

By the Court, Sandersok, J.:

I. The point made by the respondent, that this Court has no jurisdiction, is not tenable. In actions for the recovery of money this Court has jurisdiction, if “ the demand, exclusive of interest, amounts to three hundred dollars.” (Cons., *33Art. VI, Sec. 4.) The demand, exclusive of interest, in this case, amounts to five hundred and fifty dollars. The language of the Constitution in respect to the jurisdiction of this Court is the same as it is in respect to the jurisdiction of the District Court, and there can be, therefore, no difference in the rules by which questions as to jurisdiction of the subject matter are to be determined in the two Courts. For the purpose of ascertaining whether the District Court has jurisdiction we look to the complaint, and in this class of cases, if the sum sued for amounts to three hundred dollars, exclusive of interest, that Court has jurisdiction, and by parity of reason this Court has jurisdiction on appeal. The amount sued for, exclusive of interest, is the test of the jurisdiction of this Court as well as of that of the District Court, regardless of the judgment of the latter Court. We dissent entirely from the dictum of the Court in the case of Votan v. Reese, 20 Cal. 90, to the effect that where the plaintiff recovers in the District Court less than he sues for, the test of the jurisdiction of this Court, in the event the plaintiff appeals, is the difference between the judgment of the District Court and the demand made in the complaint, exclusive of interest. All civil cases which the District Courts have jurisdiction to try, this Court has jurisdiction to review, no matter what the judgment of the District Court may have been. If the plaintiff sues to recover a demand for five hundred dollars, and the District Court gives him a judgment for three hundred only, his demand does not thereby become converted into a demand for two hundred dollars, for the purposes of an appeal, should he be dissatisfied with the judgment and desire to bring his case to this Court. On the contrary, in the sense of the Constitution, his demand in this Court is precisely the same that it was in the Court below, and is to be ascertained by looking to the complaint and not by deducting the judgment of the District Court from the demand alleged in the complaint. In other words, the ad damnum clause in the complaint is the test of *34jurisdiction in this Court as well as in the Court below. (Maxfield v. Johnson, 30 Cal. 546.)

II. The point that we cannot entertain the appeal because the record does not contain a statement of the grounds of the appeal, is also untenable. The case comes here upon the judgment roll, and where such is the case no statement of the grounds of the appeal is required. (Hutton v. Reed, 25 Cal. 478.) So of the objection that the transcript does not contain all that is required by the three hundred and forty-sixth section of the Practice Act. If there was anything in the objection it should have been made before the argument, so that the appellant could have had an opportunity to supply the missing papers. (Rules 12 and 13.) But there is nothing in the objection, and it would not have prevailed had it been made before the argument. It would have been completely answered by the stipulation of counsel that the transcript contains all that is necessary for the purposes of the appeal. Many of the papers required by the three hundred and forty-sixth section of the Practice Act are frequently of no use in this Court, and we have repeatedly suggested the expediency of adopting the course which has been followed by the appellant.

So of the point that the appellant took no exceptions to the finding in the Court below, and that the judgment cannot be reversed for that reason. He makes no objection to the findings here. He confines his attack to the conclusions of law. Hence, the case is not within the rule in respect to defective findings, as stated in the one hundred and eightieth section of the Practice Act.

HI. Hpon the merits we are unable to perceive why the plaintiff is not entitled to recover the full sum for which he has sued. The money was deposited by the plaintiff with the defendant for the purpose of securing him against any loss or damage which he might sustain by reason of his signing, at the plaintiff’s request, the undertaking which was given for the release of the property which had been attached in Maguire v. Lewis. By signing the undertaking, *35the defendant became jointly and severally liable with his co-surety, Josephi, to pay to Maguire, on demand, the full amount of any judgment, including costs, which he might recover against Lewis. (Practice Act, Sec. 187, of the year 1854.) Hence the entire transaction, in view of which the rights of the parties to this action are to be determined, may be stated thus: The defendant undertook to pay any judgment which Maguire might recover against Lewis, and the plaintiff undertook to save him harmless from such payment to the extent of five hundred and fifty dollars, which sum he deposited with the defendant for that purpose. The relation of principal and surety did not exist between them, for the plaintiff was' not a party to the suit of Maguire v. Lewis. Under these circumstances, the deposit could not become the money of the defendant until he had paid the judgment in Maguire v. Lewis. So long as Maguire, or his assignee Hayes, had a cause of action against him on the undertaking, he had a right to retain the money, but when their right of action ceased the plaintiff became entitled to a return of the money. As between the plaintiff and the defendant, there could be no question as to costs and expenses in defending an action upon the undertaking. From the nature of the case no such question could have occurred to them, and therefore no provision was made for it. It was understood, as a matter of course, that, if Maguire obtained a judgment against Lewis, the defendant and Josephi would pay it without suit, or that if they did not,, their act would be voluntary, and the defendant would have no right to apply the deposit to the payment of the costs and expenses. That Maguire would refuse the money when tendered to him, and then sue upon the undertaking, they could not have anticipated, for such conduct is contrary to all human experience. We do not, therefore, understand that there was any agreement on the part of the plaintiff to secure the defendant against any loss or damage on account of such a suit.

The tender to Maguire by the defendant and Josephi of the full amount of his judgment against Lewis, so far as *36their liability upon the undertaking is concerned, was equivalent to payment, or a release from Maguire (Hayes v. Josephi, 26 Cal. 540), and thereupon the plaintiff became entitled to a return of the money.

The plaintiff is entitled to a judgment in accordance with the prayer of the complaint, and the case is remanded, with instructions to modify the judgment accordingly.